Thoni v. Bancroft Dairy Co.

• Decision Date: 15 November 1949
• Citation: 39 N.W.2d 690,255 Wis. 577
• Parties: THONI, v. BANCROFT DAIRY CO.
• Court: Wisconsin Supreme Court

Page 690

39 N.W.2d 690

255 Wis. 577

THONI, v. BANCROFT DAIRY CO.

Supreme Court of Wisconsin.

Nov. 15, 1949.

Hugh F. Oldenburg, Madison, for appellant.

Wilkie, Toebaas, Hart, Kraege & Jackman, Madison, for respondent.

MARTIN, Justice.

The main question for our determination is whether, under all the evidence, the court should have submitted the case to the jury. When the defendant made the motion to direct a verdict, the question presented to the trial court was one of mixed law and fact. It became his duty to weight and consider the testimony in the case, and to apply to it those rules of law which are deemed controlling in cases of this kind.

In Smith v. Pabst, 1940, 233 Wis. 489, 491, 288 N.W. 780, 781, a fourteen year old girl was injured in a fall from a saddle horse and at the conclusion of the evidence, the court directed a verdict on defendant's motion, and on review it was stated:

'It is well settled that it is the duty of a trial court in a proper case to grant a nonsuit or to direct a verdict, and that when a verdict is directed the question on appeal is whether the trial court was clearly wrong. Leckwe v. Ritter, 207 Wis. 333, 241 N.W. 339, and numerous cases cited therein. In a recent case, Rusch v. Sentinel-News Co., 212 Wis. 530, , 250 N.W. 405, 406, it was said:

"A verdict may properly be directed only when the evidence gives rise to no dispute as to the material issues or only when the evidence is so clear and convincing as reasonably to permit unbiased and impartial minds to come to but one conclusion."

See also: Maanum v. City of Madison, 1899, 104 Wis. 272, 273, 274, 80 N.W. 591; Chybowski v. Bucyrus Co., 1906, 127 Wis. 332, 340, 106 N.W. 833, 7 L.R.A., N.S., 357; and Szczepanski v. Chicago & N. W. R. Co., 1911, 147 Wis. 180, 183, 132 N.W. 989.

The trial court concluded in the present case that there was no evidence to go to the jury that there was a violation of the safe place statute of Wisconsin, sec. 101.06, Stats.

Plaintiff's first contention is that the floor contained a defect in the nature of a 'bulge' upon which plaintiff slipped and fell. Andrew Dahlen, Dane county surveyor and plaintiff's witness, used a carpenter's level, twenty-four inches long, slid it over the floor and used a light on the other side of the level. If he could see a light under the level he would take a measurement. He testified on direct examination: 'We have taken elevations at the different corners of the squares that we mentioned. At the sixth square starting from the easterly wall of Closet 1, we find a line of depression, or, in other words, there is a slight depression at the edge of a series of these squares, and that continues from the south wall, or at the line of doorways, and extends north to a column that supports the roof. We have used the normal elevation of the floor as zero and along this line we have a depression of one one-hundredth of a foot. That starts--that works both ways from this line. In other words, if the lowest point is one-tenth, it tapers up to zero at the west of the line and also tapers toward zero at the east of the line. Then those squares further west, we have a bulge or elevation which we have indicated on the map by broken lines. The highest point of that bulge is, roughly--the highest point of that bulge is two one-hundredths of a foot above the normal elevation of the floor.'

This testimony shows that in the sixty-three inch by eighty-one inch area examined by witness that there were variations from zero to one one-hundredth of a foot and that what he called the 'bulge' was approximately two one-hundredths of a foot. The chart prepared by this witness shows a gradual unevenness throughout this small area. The architect and building contractor testified that such unevenness was unavoidable in laying a concrete floor.

In Schoonmaker v. Keltenback, 1940, 236 Wis. 138, 143, 144, 294 N.W. 794, 796, the plaintiff in walking down a stairway fell and was injured. His claim for recovery was based on lack of proper railing and also upon upward projection of the metal strip covering the rubber matting. This court said:

'Courts have been hesitant to sustain findings that walking surfaces are unsafe or defective by reason of slight irregularities or projections.

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'We are of the view that a projection of the brass strip one-sixteenth of an inch above the rubber mat upon the inside portion of the nosing of the step is too inconsequential to constitute a violation of the safety statute, St.1939, § 101.06.'

In Erbe v. Maes, 1938, 226 Wis. 484, 277 N.W. 111, an action was brought against a storekeeper for injuries sustained by a customer when she caught her foot on the end of a rubber mat at the entrance to the store, and fell. It was held that the evidence was insufficient to raise a jury question as to the storekeeper's liability either on the theory of negligence or of violation of the safe place statute, where the rubber mat, placed at the slightly sloping tile entrance to prevent slipperiness, was in good condition and repair and...